Earlier this month at the US District Court in New Jersey, Judge Jose Linares accepted a Nestlé-filed motion to dismiss a class action lawsuit that slammed health claims made by Gerber about its probiotic-infused products.
In its motion to dismiss the lawsuit, Gerber claimed that the Plaintiffs had “cobbled together a string of conclusory assertions, vague references and errant mischaracterization - bereft of the facts and details necessary to withstand a motion to dismiss.”
A spokesperson for Nestlé Nutrition told DairyReporter.com that Gerber continues to stand by its claims.
“We are very pleased with the result, and Judge Linares’ decision, and believe it is the right decision at this stage,” said the spokesperson.
“Gerber believes all of the advertising and labels of these products are truthful, accurate, and lawful, and Gerber stands by its claims. Ensuring the safety of our products is Gerber’s most important priority,” the spokesperson added.
Immune system misrepresentation
The lawsuit, initially filed in February 2012, alleged “immune system-related misrepresentations” by Gerber on packaging and labelling, and in advertising for three products - Good Start Protect Infant Formula, Good Start 2 Protect Follow-On Formula, and DHA & Probiotic Cereal.
According to the Plaintiff’s second amended complaint, the products “contain Defendant’s immune system misrepresentations based on the infusion of the same probiotic bacteria – Bifidus BL.”
Gerber’s website states that Bifidus BL is “probiotic which helps your baby fight against harmful bacteria in his digestive system.” It adds that Bifidus BL is a mix of probiotics “similar to those found in breastmilk.”
“Defendant claims that the Product’s significant immune system health benefits result because of the infusion of a ‘probiotic’ bacteria, specifically its trademarked probiotic Bifidus BL, in the products. However, numerous studies show the Products do not and cannot provide the immune-related health benefits Defendant claims,” the Plaintiff complaint said.
“Thus, Defendant’s representations are false, misleading and reasonably likely to deceive the public,” it added.
False advertising claim
In its motion to dismiss the case, Gerber claimed that despite amending their complaint twice in just over 12 months, the Plaintiffs failed to construct a viable lawsuit.
“Plaintiffs have had more than a year since this litigation began to allege a viable false advertising claim, yet they still fail miserably,” said the filed motion to dismiss.
“Instead, Plaintiffs have cobbled together a string of conclusory assertions, vague references, and errant mischaracterizations – bereft of the facts and details necessary to withstand a motion to dismiss.”
Following an assessment of Gerber’s motion to dismiss, Judge Linares said: “After considering the submissions of the parties in support of and in opposition to the instant motions, Defendant’s motion to dismiss is granted."